2

I am on the board of a 501 (c)(7) social club in the US. The club organizes events where members and non-members pay to attend, and if you don't pay, you're not attending (IE closed to the public in general). Members also pay annual dues in order to be members.

If during such an event I take photos of the participants, can I then use them to create advertisements for future events organized by the same club (without obtaining a model release)?

At first glance I think no, because I would be using their likeness to endorse something. But then I think yes, as we are a non-profit, so technically not a commercial usage (and yes, I do realize that sounds a bit like I'm trying to justify it)

Finally, there may be language on our website to the effect that photos may be taken (or will be in the near future), but participants are not signing anything to acknowledge this when they attend.

Peter M
  • 1,959
  • 13
  • 25
  • 1
    I understand you might want to sound out initial feedback here, but the real answer is to talk to a lawyer. – osullic Oct 24 '22 at 14:20
  • @osullic I know the real answer is always going to be talk to a lawyer. But there are many questions on here asking about model release corner cases – Peter M Oct 24 '22 at 14:29

2 Answers2

-1

This question is probably more appropriate over on the Law Stack Exchange. But I'll post the IANAL answer here.

It likely hinges less on model releases and more on what constitutes being "in public." All of this might be different given your state and (if applicable) major metropolitan area, as many have additional restrictions on what constitutes "public" and "private" spaces. (i.e. in NYC, if there is any kind of barrier, you are "in private", even if it's just a piece of rope around an outdoor dining area.)

At least in the US, photos take in public can be used, even for commercial purposes, without an explicit release.

Probably all you need is a notification of public filming (essentially declaring it a public space for photographic/video purposes). This can be on the invitation, tickets, programs, even posted at the entrances to the venue. Merely entering the private space then constitutes consent to having the image used under the terms of that notice.

There are obvious exceptions, for example, you can't film them in any situation where privacy is universally expected—like in a changing area or washroom—without explicit consent.

As always, consult an actual lawyer who is knowledgeable in this area. Also consider the PR risk, as if you suspect your attendees will resent having their images used, you may want to go well above the legal requirements and get permission for each use.

LightBender
  • 3,181
  • 12
  • 40
  • We don't own the property that the events take place on, we rent it as required. But there is a barrier to entry. The location is New Mexico. I just googled "private space in New Mexico" and I scrolled through several pages of Spaceport America .. grrr. Also I am definitely not looking to use photos for anything other than advertising these events. If I was going to attempt to sell any photos I'd definitely get a model release (although I might need me as a board member to give me as a photographer permission to sell for profit pics that I took at such an event) – Peter M Oct 24 '22 at 17:06
  • And yeah, we've already identified the PR risk of not doing things the right way and have held off using some images for publicizing the next event – Peter M Oct 24 '22 at 17:08
  • @PeterM, in that case you'll also need to check the policies of the venue as well as get their permission to use the venue in your advertising. Also, it would probably require you to take a vote of the board (with you abstaining, and possibly a unanimous one, depending on jurisdiction) to give you permission to sell the images, as you shot them in an official capacity and the images belong to the organization as a result. There are conflicts of interest involved in you just giving yourself permission. – LightBender Oct 24 '22 at 17:51
  • I knew I should have added the /s to the comment about me giving me permission. But good point about the venue. – Peter M Oct 24 '22 at 17:53
  • Are you sure that the organization owns copyright? I always understood it to be that the photographer did. But I would seek permission to sell them by myself for fine art purposes if I intended to do so. – Peter M Oct 24 '22 at 18:30
  • 1
    @PeterM, they would probably hinge on your position based on my (IANAL) understanding of the laws at play. Because you are on the board, you are "working" during the event (even if it is a volunteer position, you are present in an official capacity). The photos could easily be argued as being taken in you official capacity as a board member and therefore fall under work for hire copyright laws. The copyrights would therefore belong to the organization, not you. It's at least gray enough you should probably get an agreement in writing if you want to maintain the copyright for yourself. – LightBender Oct 24 '22 at 21:38
  • I had my suspicions about that. Thanks for you input. – Peter M Oct 24 '22 at 21:40
  • Selling paparazzi photos to a tabloid is not commercial usage. When the tabloids print them as part of a news story, no matter how dubious the journalistic sources, it's still considered *Editorial* usage. Commercial usage would be if they were used in an ad to promote a good or service. – Michael C Oct 25 '22 at 03:27
  • It'd be interesting to see a test case in U.S. Federal Court regarding a sidewalk table with a rope around it being considered "private" in terms of 1st Amendment issues. Seeing as how the U.S. Supreme Court has ruled in a mountain of cases that even private spaces visible from public spaces are fair game as long as the photographer is in a public space and can reasonably see the subject without resorting to use of things such as ladders (to see over fences or walls) or drones. You can take a photo from a public street through a window and it's perfectly usable for editorial use. – Michael C Oct 25 '22 at 03:31
  • It doesn't matter if the photographer is on the board, the chairman of the board, or the owner of the board. Unless there's an explicit work for hire agreement in place, or taking photos is a routine part of an employment contract, the photographer owns the copyright to the images the photographer takes. Being on a board as a volunteer does not equate to an employment contract or even as an employment relationship covered by state/federal employment regulations. Absent of any documentation otherwise, the photographer owns the images. – Michael C Oct 25 '22 at 03:41
  • @MichaelC, I couldn't find anything explicit that resolved the question of if a board member's work in his official capacity would belong to the organization, so that's good to know. I would still recommend a simple CYA agreement, if not for legal purposes, then for making sure all parties are well informed and avoid any confusion. On the subject of commercial vs editorial, you are most correct, I confused the two while rapidly typing an answer on my lunch break. I shouldn't do that . Given your excellent answer, I'll just remove that bit. – LightBender Oct 25 '22 at 05:53
  • @MichaelC, It would indeed make an interesting test case, given that, to my knowledge, it is only a local ordinance concerning street photography specifically. – LightBender Oct 25 '22 at 06:05
-1

Disclaimer: I am not a lawyer. The information below is general in nature and should not be taken as specific legal advice. If you have a specific legal question you should consult an attorney practicing in your jurisdiction that is familiar with the law and case history regarding the issues you wish to address.

The following general information is based on the assumption you are located in the United States or a country with similar intellectual property laws regarding the use and licensing of photographs.

Would this be commercial usage of a photo?

It'd be a gray area. It would hinge on whether the photos were presented as the people in them endorsing someone else to purchase a ticket to the next event or presented as a report on the last event in a separate story from a solicitation for potential attendees to purchase tickets to future events.

The fact that your organization is a non-profit has zero bearing on the issue. If persons are depicted as endorsing a product or service, even in a solicitation offered as an opportunity to donate to a non-profit, then it's commercial usage. Period.

But that's the least of your worries.

The real issue is whether publicly releasing the photos in any way might be a violation of their right to privacy while in a private place.

If there's any doubt at all in your mind that the people depicted in the photo might not want their likenesses used to publicly represent your organization, then you need to get their explicit permission to use photos of them in writing, with the exact nature of the intended usage spelled out in the written release.

The fact that you even asked this question leads one to think that you already know some of them might not want their likenesses used. Get signed releases.

You've been a bit obscure about what type of activity goes on at your private social club. Some private clubs engage in activities that many members do not wish to be made public. This may or may not be applicable to your specific case, but you've left some doubt in that respect. Editorial usage of potentially embarrassing photos that serve no public interest have been ruled to be defaming, even when the images were taken in publicly accessible places.

This concept is illustrated in the classic case of Daily Times Democrat vs Graham which has been used as a landmark case in many subsequent cases since 1964. It's also almost universally cited in various photojournalism textbooks in the United States.

For a fuller discussion of Daily Times Democrat vs Graham and another related case, Raible vs Newsweek, where a man did in fact sign a photo release but then sued and prevailed when his photo was used to illustrate a story that implied he held views and made statements that he neither held nor made, please see the later part of this answer to a related question here at Photo SE.

Both of these cases involved photos taken in public. When photos are taken in a place considered private, the bar is set even higher. Get releases!

Michael C
  • 175,039
  • 10
  • 209
  • 561
  • The reason that I have been "coy" about the activity is that it is irrelevant to the question. But in fact the activity that goes on behind "closed doors" at these events could just as easily (and has) happened in full view of the public. There is nothing going on here that is shameful in any way or manner, and I object to the insinuation of that. – Peter M Oct 25 '22 at 12:37
  • It may be irrelevant to the question in your mind, but as asked the question does not remove that from the realm of possibility. I'm not insinuating anything, just allowing for activities folks may not want to be publicly seen participating in because your question did not remove the possibility. In places where gambling is illegal, folks wouldn't want to be publicly seen playing BINGO. In places where the sale or public consumption of alcoholic beverages is prohibited, many folks wouldn't want to be seen drinking socially. It doesn't necessarily have to be something scandalous. – Michael C Oct 25 '22 at 19:10
  • But bingo is scandalous! – osullic Oct 25 '22 at 20:48
  • Again, you are again insinuating that I am deliberately hiding some improper activity (by changing "coy" to "being obscure"). What ever happens is none of yours or anyone else's business. All you need to say is that some members may not want these activities publicized. That's it. No insinuation necessary. – Peter M Oct 26 '22 at 00:26
  • As long as the question is as vague as you have asked, and as long as anyone else who had a similar question about a group whose activity does include something that some folks might not want publicized would have their question closed as a duplicate to this question, then the answers should consider that possibility. If you want to eliminate that possibility, then edit your question to exclude it. – Michael C Oct 26 '22 at 23:37